Appeals court upholds UT's use of race in admissions

Bobby Blanchar, Houston Chronicle

By Bobby Blanchard

Updated 4:11 pm, Tuesday, July 15, 2014

FILE - Abigail Fisher (right) arrives at the Homer Thornberry Judicial Building in Austin for a hearing in her case against the University of Texas, in which she claims that it improperly denied her admission because of race.
Photo: Jay Janner / Austin America-Statesman

FILE - Abigail Fisher (right) arrives at the Homer Thornberry...

FILE - University of Texas President Bill Powers walks out of the Homer Thornberry Judicial Building in Austin, Texas, after a hearing in the case against Abigail Fisher. The 5th Circuit Court of Appeals is rehearing the case of Abigail Fisher, a white woman who in 2008 was not admitted to the University of Texas at Austin because she did not graduate in the top 10 percent of her high school class _ the criterion for 75 percent of the school's admissions. (AP Photo/Austin American-Statesman, Jay Janner) AUSTIN CHRONICLE OUT, COMMUNITY IMPACT OUT, MAGS OUT; NO SALES; INTERNET AND TV MUST CREDIT PHOTOGRAPHER AND STATESMAN.COM
Photo: Jay Janner, Associated Press

FILE - University of Texas President Bill Powers walks out of the...

FILE - Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, stands at a news conference at the American Enterprise Institute in Washington, Monday, June 24, 2013. The U.S. Supreme Court ruling on affirmative action in higher education will have "no impact" on the University of Texas' admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases. (AP Photo/Charles Dharapak)

FILE - Abigail Fisher, who sued the University of Texas when she...

FILE - Abigail Fisher, second from right, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, with Edward Blum, second from left, of the Project on Fair Representation, and parents Richard and Rosalie Fisher, speaks at a news conference in Washington, Monday, June 24, 2013. The U.S. Supreme Court ruling on affirmative action in higher education will have "no impact" on the University of Texas' admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases. (AP Photo/Charles Dharapak)

FILE - Abigail Fisher, second from right, who sued the University...

FILE - Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, with Edward Blum of the Project on Fair Representation, speaks at a news conference at the American Enterprise Institute in Washington, Monday, June 24, 2013. The U.S. Supreme Court ruling on affirmative action in higher education will have "no impact" on the University of Texas' admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases. (AP Photo/Charles Dharapak)

A federal appeals court on Tuesday upheld a race-conscious admissions policy at the University of Texas at Austin that was challenged by a prospective student from Sugar Land who was denied admission in 2008.

In a 2-1 decision, a panel of the 5th Circuit Court of Appeals upheld earlier decisions by a trial court and the appeals court that UT's rejection of Abigail Fisher did not violate the 14th Amendment. Fisher appealed to the U.S. Supreme Court, which last year sent the case back to the 5th Circuit with instructions to apply a stricter test to the validity of UT's policy.

"We are persuaded that to deny UT-Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter," Judge Patrick Higginbotham wrote for the majority, referring to previous cases relating to race-conscious admissions.

Judge Emilio Garza, in a dissent, said the university had failed to "prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."

"Because the University has not defined its diversity goal in any meaningful way - instead, reflexively reciting the term "critical mass" - it is altogether impossible to determine whether its use of racial classifications is narrowly tailored," Garza wrote.

UT said it would review the ruling before commenting. Fisher and her attorney were not immediately available.